JUDGMENT :

1. The present First Appeal is directed against the judgment and award passed in Motor Accident Claims Petition No. 280 of 1987 by the learned Motor Accident Claims Tribunal (Main), Bhavnagar on 17.6.1993, the appellant – Insurance Company has preferred the present appeal.

2. The broad facts of the case are that a vehicular accident took place on 13.9.1984 on the road leading from Alang to Bhavnagar and the vehicle involved was a Matador bearing No.GUQ 9201 owned by Rajesh Iron and Metal Ship Breakers – respondent No.1 and insured with the Oriental Insurance Company Limited. It is the case of the appellant that several persons were travelling in the said Matador and in the accident, three persons died and one suffered injuries. The deceased were one Dipakbhai Rajaram, partner of Rajesh Iron and Metal Ship Breakers, his accountant Dushyantkumar Bhatukbhai Trivedi and Savjibhai also an employee of the said firm and the injured was one Mahmadbhai Mavjibhai Khoja.

3. The claim petitions were filed by the heirs of the deceased and the injured. It may be noted that Motor Accident Claim Petition Nos.318 and 321 of 1984 were filed in the year 1984 whereas Motor Accident Claim Petition Nos. 102 and 280 of 1987 were also filed through the same advocate only in the year 1987 and there was delay of 3 years and 3 months in filing Motor Accident Claim Petition No.280/1987 which came to be condoned.

4. The learned Motor Accident Claims Tribunal (Main), Bhavnagar vide the impugned judgment and award dated 17.6.1993 partly allowed the claim petition preferred by the claimants and being aggrieved by the same, the appellant – insurance company has approached this Court by way of filing the present appeal.

5. Learned advocate Mr.Vibhuti Nanavati for the appellant – insurance company has drawn the attention of this Court to the fact that immediately after the accident, on the same day FIR in respect of the accident was filed by Mahmadbhai Mavjibhai and a panchnama was also drawn on the same day. Mr.Nanavati submitted that if the reference is made to the description of the accident stated in Motor Accident Claim Petitions No.318 and 321 of 1984, it has been specifically stated that Dipakbhai Rajaram was driving the accident and it was he who caused the accident and this was the specific case of the claimants and the learned Tribunal without any amendment to the pleadings has stated in the issues "driver of the vehicle" which in the facts of the case can only be Dipakbhai. Mr.Nanavati has further submitted that reference may also be made to the FIR filed in this case which is relied on by all the parties concerned and the panchnama drawn on the same day, corroborates this fact in as much as it was the case in the FIR that Dipakbhai was driving the vehicle which dashed with a tree resulting in heavy damage to the vehicle on the drivers side and in this accident Mahmadbhai who was sitting on the cleaner's side i.e. left side was thrown out and suffered injuries. Mr.Nanavati has further submitted that it has also come in the evidence that Dipakbhai suffered injuries on the stomach and two other persons sitting at the back also suffered injuries and died. In support of his submissions, Mr.Nanavati has placed reliance on the following decisions :

(1) Oriental Insurance Co. Ltd., v. Premlata Shukla & Others reported in 2007(7) SCALE 725

(2) New India Assurance Co. Ltd., v. Jaysukhlal Maganlal Doshi & Others, reported in 2013(3) GLR 2283

5.1 While making the submissions, Mr.Nanavati also placed reliance on Exh-67 - Claim Form filed by Rajesh Iron & Metal Ship Breakers - owner of the vehicle in which Dipakbhai was a partner, dated 9.10.1984 and the reasons assigned by the learned Tribunal to discard this positive evidence is unjustified and perverse. Mr.Nanavati has also drawn attention of this Court towards paragraph 3 of the impugned judgment that while describing the brief facts of the case, the learned Tribunal itself has stated that the vehicle was